CORRECTED COPY: AUSTRALIAN IMMIGRATION LAWS CONTINUE TO BE

UNCLAS SECTION 01 OF 02 CANBERRA 000588

SENSITIVE
SIPDIS
C O R R E C T E D C O P Y (SENSITIVE CAPTION ADDED)

E.O. 12958: N/A
TAGS: PGOV PREL PHUM AS
SUBJECT: CORRECTED COPY: AUSTRALIAN IMMIGRATION LAWS CONTINUE TO BE
SOFTENED

REF: A. 08 CANBERRA 1324

B. 07 CANBERRA 1148

C. 07 CANBERRA 1143

CANBERRA 00000588 001.4 OF 002



1. (U) SUMMARY: The Australian government has restricted the
ability of the Immigration Minister and his department to
cancel visas on character grounds, continuing the Rudd
government's softening of immigration laws. This has been
welcomed by human rights advocates, particularly in the
context of the Mohammed Haneef case in 2007 (reftels) END
SUMMARY.

THE VISA


2. (U) Under Section 501 of the Migration Act, the
Immigration Minister or his department may cancel a visa on
"character grounds". Grounds upon which a visa can be
cancelled include: substantial criminal record; association
with criminal conduct; general conduct; and risk of future
conduct grounds. The previous Howard government came under
fire for what some saw as indiscriminate application of the
law, resulting in deportation of some long-term permanent
residents. One high profile case was Robert Jovicic who was
deported to Serbia in June 2004 despite never having lived
there, and having resided in Australia over 30 years. The
Ombudsman and Human Rights Commission have been critics of
deportations of this kind.

THE CHANGES


3. (U) According to recent press reports, Immigration
Minister Chris Evans has issued a directive narrowing the
grounds under which a visa can be cancelled. For example,
association with a criminal is no longer sufficient grounds
for cancellation. This has been welcomed by human rights
advocates, particularly in the context of the Mohamed Haneef
case in 2007. Haneef's visa was stripped by the Immigration
Minister soon after he was released on bail in relation to
terrorism charges (the charges were later dropped). The
Minister cancelled the visa on the basis of an on line
communication between Haneef and his second cousin. TEXT of
the Immigration Minister's announcement follows in Para 4.


4. (BEGIN TEXT) The Government takes very seriously its
role in protecting the Australian community from harm caused
by non-citizens who want to come to Australia, or who might
already be here.

There are strong provisions in the Migration Act that allow
decision makers to refuse a visa application, or to cancel a
visa, where a person is found to be not of good character.

The new Ministerial Direction provides clear and current
guidance to decision-makers on how to use these important
powers.

The role of section 501 is to protect the Australian
community from unacceptable risk of harm from criminal or
other serious conduct. The new Direction requires decision
makers to assess the risk of harm that the person presents to
the community, including individuals.

The new Direction gives guidance to decision-makers on
interpretation of the concept of 'association' under section
501 of the Migration Act.

This term in section 501 relates to people who fail the
character test because of their association with a person,
group or organisation involved in criminal activity.

Guidance on 'association' incorporated into the new Direction
reflects Australian caselaw (specifically - the Haneef case).
This guidance has made it clear that, for the purposes of a
section 501 'association' case, an assessment of whether the
person was sympathetic with, supportive of, or involved in
the criminal conduct of the person, group or organisation is
required;- mere knowledge of the criminality of the associate
is not, in itself, sufficient to establish association.
Qis not, in itself, sufficient to establish association.

A person's association must have some negative bearing on
their character.

Under the old Direction, a person could fail the character
test if they had a simple association with a person, group or
organisation involved in criminal conduct. This is no longer
consistent with Australian caselaw established by the courts.

The new Direction provides for a fairer and more reasonable
response to character issues, particularly where the person
has significant ties to the Australian community and presents
a lower level of risk.

CANBERRA 00000588 002.4 OF 002



Decision makers using the section 501 visa refusal and
cancellation power have been guided to date by a Ministerial
Direction, issued in 2001 by former Minister Ruddock, which
sets out the factors to be considered when making these
decisions.

The old Direction did not give sufficient emphasis to crimes
of violence. It also included consideration of the
'expectations of the community'. This raised the potential
for the visa refusal and cancellation power to be seen as a
vehicle for arbitrary vengeance or further punishment, rather
than as a mechanism to protect the community or individuals
from unacceptable risks.

The old Direction did not give sufficient weight to
Australia's international obligations, or to people who have
spent a significant period of their life in Australia.

The new Direction came into effect on 15 June 2009 and will
be used for all section 501 character decisions made on and
from that date by the Department and the Administrative
Appeals Tribunal.

It is binding on those decision-makers.

The New Direction will not be applied retrospectively to
cases which have been decided in the past using the previous
Ministerial Direction. There will not be a review of these
earlier decisions by me or the Department. (END TEXT)

UNDER THE RADAR


5. (SBU) COMMENT: The government has not widely publicized
the new approach, possibly because being "soft" on border
protection and national security is politically risky. Rather
than issuing a public statement, the GOA has restricted
dissemination of the changes to internal government channels
and human rights organizations, part of Labor's Left
constituency. The changes are not surprising. In February
2008, the new Immigration Minister granted Jovicic a
permanent visa. Evans stated he is uncomfortable with his
power to "play God" and believes Australia's reputation was
damaged as a result of the previous government's immigration
policies. END COMMENT.


6. (U) For additional information concerning character
requirements, please see
http://www.immi.gov.au/media/fact-sheets/79ch aracter.htm

CLUNE